Is govt crossing the Rubicon in judges' appointment?

The tussle between the central government and the Supreme Court for the appointment of judges is not new. The judges of the Supreme Court and the High Courts are appointed under Articles 124 and 217 of the Constitution of India respectively. In the first eight years of the Constitution, from 1950 to 1958, over 200 judges were appointed to High Courts, and there were only seven instances where there was some disagreement on the names of judges to be appointed.

The attempt to undermine the independence of the judiciary first originated in 1973, after the Kesavananda Bharti judgement, which struck down some constitutional amendments by holding that the basic structure of the Constitution could not be amended. The Government of the day decided that only those judges who were committed to its ideology should be appointed. This set into motion the process of supersession of judges.

One such example was when AN Ray was appointed as the Chief Justice of India superseding Justices Shelat, Hegde, and Grover, who, by convention of seniority, were next in line for the position. The subversion of independence of the judiciary became a major issue, and the manner of appointment of judges was first raised in SP Gupta's case (1981).

In the said case, the majority of judges held that primacy in judicial appointments was with the central government and it could disregard the opinion of the Chief Justice in the matter of appointment and transfer of judges and the Chief Justices. The rationale behind the judgement was that the Constitution has devised an effective mechanism for the appointment of judges which strikes a just balance between the judicial and executive.

It is the executive which is a purely elected body made accountable to the people. The judgement was in consonance with the practice followed in the US, wherein the power vests with the executive in making judicial appointments with the advice and consent of the Senate.

However, the judgment soon led to partisan appointments and the issue was referred to a larger bench for reconsideration.

In 1993, the view in SP Gupta's case was reversed by the bench of nine judges in the Supreme Court Advocate-on-Record Association case, which wrested control in the matter of judicial appointments from the executive and vested it with the judiciary.

The primary reason behind the decision being that the judiciary is best suited and has the best opportunity to assess the true worth of candidates to be appointed as superior judges to high constitutional functionaries.

It is from the Supreme Court's Advocate-on-Record Association judgement in 1993 that the idea of the Collegium stems. A Collegium meant the Chief Justice plus three senior-most judges of the court, whose consent was necessary for appointment of judges. In 1998, in the Presidential Reference case, the Collegium was widened to five judges. As per the said judgement, the Chief Justice must consult two senior judges (later increased) of the Supreme Court and collectively form an opinion in making judicial appointments.

This case restricted the role of the Government only in returning a name recommended by the Collegium for reconsideration on matters such as antecedents and personal character, which, at times, the Government through their various agencies such as the Intelligence Bureau may be in a better position to know. However, if after considering the recommendation of the Government, the Chief Justice of India reiterates its initial recommendation, then that appointments ought to be made by the Government.

In 2014, to overturn the Collegium system, the Government introduced the National Judicial Commission Appointment Act, 2014 (NJAC) which proposed a method of appointment of judges to the Supreme Court and High Courts in the country through the participation of the judiciary, executive and eminent persons.

The NJAC, however, had a short life span. In 2015, the Supreme Court struck down the Act in its entirety for having inadequate representation of the judicial component in the NJAC and failing to preserve the independence of the judiciary in the matter of judicial appointments.

The judgement once again confirmed the primacy of the judiciary in judicial appointments, with the Government having the limited role of returning recommendations to the Collegium, for reconsideration. Later judgements of the Supreme Court further laid down a four months' timeline for the Government to act upon the Collegium's recommendations and make appointments.

In 2021, Supreme Court in the judgement of M/s Project Pvt. Ltd observed that the High Courts were functioning with only 50 per cent of their sanctioned strength, with only 664 judges appointed against the sanctioned strength of 1080 judges. Further, there were about 220 recommendations by the Collegium of the Supreme Court and the Government is simply sitting over these recommendations without getting the approval of the President for months.

The court in another case recently observed that names for the appointment of judges have been pending for over a year and a half. Such an inordinate delay in processing the names recommended by the Supreme Court Collegium directly affects access to justice.

On November 29, 2022, the names of 10 judges recommended for elevation by the Collegium were returned by the Central Government. As per the news reports, some names that had been reiterated by the Collegium have also been returned.

This is not permissible in view of the nine-judge bench judgement. The central government can't return the names recommended once they have been reiterated and confirmed. Since NJAC has been struck down and the Collegium system has been upheld, the central government is bound to comply with the judgement of the Supreme Court.

The conduct of the government in not taking any action over the files for the appointment of judges for a very long time and rejecting the names that were reiterated by the Collegium contrary to the settled law may lead to serious legal consequences.

The first three words in our Constitution are "We the People".

The Constitution is for the common man. The delay in judicial appointments leads to delay in justice. Criminal appeals are pending in the courts for more than 10 years. A trial takes an average of at least five to seven years to conclude. The position is no different in civil cases. One cause of delay could be attributed to the courts not functioning with their full sanctioned strength.

Therefore, the standoff between the central government and the Supreme Court must be resolved at the earliest. Till then, the Government is bound to follow the law for complete access of justice to the common man.

(The author is an Advocate-on-Record in the Supreme Court of India,

and the founding partner of S& LL Law Chambers.)